Howard v. Bryan

The plaintiff in this action seeks to foreclose two mortgages, alleged to have been given as security for the same debt. The first mortgage was executed by the adult owners of certain undivided interests in a tract of land, and as to that there is no controversy. The second mortgage purports to have been executed by the guardian of five minor children, who were owners of the remaining undivided interests in the same tract. By the decree of the superior court the first mortgage was foreclosed, but as to the second the plaintiff was nonsuited upon the ground that the order of court purporting to authorize it was void. From this portion of the decree the plaintiff has appealed, and the principal' question to be determined is the correctness of the ruling of

The law which • empowers executors, administrators, and guardians, when duly authorized by order of court, to mortgage the estates of decedents, minors, and incompetents is embraced in sections 1577 and 1578 of the Code of Civil Procedure, as originally enacted in 1887 and as since amended. The proceedings involved in this inquiry, having been commenced subsequent to March 3, 1893, are governed by the law as amended at that date (Stats. 1893, p. 72), and the question is, whether, upon the face of the record, it appears that the substantial requirements of the statute were complied with in procuring the order empowering the guardian to execute this mortgage.

The steps to be taken by a guardian to obtain such an order are prescribed by section 1578 of the Code of Civil Procedure, the first of which is that he must file a petition showing, —

1. “ The particular purpose or purposes for which it is proposed to make the note or notes and mortgage, which shall be either to pay the debts, legacies, or charges of administration, or to pay, reduce, extend, or renew some lien or mortgage already subsisting in said realty, or some part thereof;

2. “ A statement of the debts, legacies, charges of administration, liens, or mortgages to be paid, reduced, extended, or renewed, as the case may be;

3. “ The advantage that may accrue to the estate from raising the required money by note or notes and mortgage, or pro- • viding for the payment, reduction, extension, or renewal of the subsisting liens or mortgages,, as the case may be;

4. “ The amount to be raised, with a general description of the property proposed to be mortgaged; and

5. “ The names of the legatees and devisees, if any, and of the heirs of the deceased, or of the minor, or of the incompetent person, as the case may be, so far as known to the petitioner.”

The filing of such petition is to be followed by an order of the court directing all persons interested to appear, and show cause, if any they can, why authority to mortgage should not be granted, and by a hearing at the time designated. If, upon a full hearing, the court is satisfied that it will be for the ad

The petition further showed that at the time of his death Isaac Bryan owed two thousand five hundred dollars, secured by a mortgage on said'tract of land; that the petitioner had been without any means of support for herself or children, except the income from the land; that the rents had not exceeded six hundred dollars per annum, — a sum wholly insufficient for the support of herself and her minor children; that to pay off the said debt of two thousand five hundred dollars, secured as aforesaid, and to pay debts incurred for the support of herself and children, she had borrowed four thousand five hundred dollars from M. A. Howard (the plaintiff herein), as security for which she had mortgaged her interest in said land; that she had subsequently borrowed from Howard six hundred dollars more, which had been advanced without security, and had been used for the support of herself and these minors; that said sums, together with interest, amounting in all to more than six thousand dollars, were due and unpaid, and that her wards were indebted to her in the sum of five thousand

The petition further alleged that the future expenses of administration, including support of the minors, costs, commissions, and counsel fees, would amount to $4,750.

It was further shown that the interest of the petitioner and one of her adult children in the land had been sold under execution, and a sheriff’s deed delivered to one Rider; that he was threatening to and would oust her from possession and claim a partition of the land if she failed to pay him $2,150, for which sum he had agreed to reconvey; that Howard was also threatening to foreclose; that one Dalton had agreed to lend her $10,000 with which to satisfy Howard’s and Rider’s claims, provided she obtained authority to mortgage the interest of the minors, in conjunction with a new mortgage to be given by herself and her adult children upon their interest in the land; that unless this agreement could be carried out, costly and expensive litigation would ensue, disastrous to the interests of the minors and herself.

Upon these allegations, and others not requiring particular statement, leave was asked to include the interest of the minors in a new mortgage for ten thousand dollars.

Upon the filing of this petition, and upon proper orders and notice to all parties concerned, a hearing was had, and upon a finding that all the allegations of the petition were true, an order was made, empowering the guardian to execute a mortgage of the interest of the minors, in conjunction with a similar mortgage of the interests of the guardian and adult children, for nine thousand five hundred dollars. Both mortgages were accordingly executed to Dalton, who afterwards assigned them to the plaintiff, Howard.

The judgment of nonsuit as to the guardian’s mortgage followed inevitably from the ruling of the superior court sustaining the objection of the respondents to the admission of that mortgage when it was offered in evidence. If it was properly excluded, there was no evidence in the case upon which to base any judgment against the minors, or their interest in the land. The points made by the appellant to the effect that, irrespective of the validity of the mortgage, the judgment is erroneous because, — 1. The respondents were estopped to deny its validity; because, 2. It was good as an equitable mortgage; and be

These questions being disposed of, there remains but one: Was the guardian’s mortgage valid? or, more specifically, Was there a valid order authorizing the mortgage?

This being a collateral attack upon the order, only those facts and matters appearing upon the face of the record are to be considered; and if they show no excess or defect of juris-' diction, no mere error of the court in the exercise of its jurisdiction, or irregularity in the proceeding, will invalidate the order. And in examining the record the same presumptions are indulged in favor of the regularity and validity of the pro

Keeping this proposition in view, the first question is, Did the petition comply with the substantial requirements of the statute?

The essential fact to be found by the court as the basis of its order is, that it will be for the advantage of the estate to raise money by a loan, and the statute prescribes the matters which must be set forth in the petition as a basis for the judgment of the court.

The first requisite of the petition is, that it must disclose the particular purpose for which the money is to be used; and in case of a minor’s estate, that purpose must be either to pay debts or charges of administration, or to pay, reduce, extend, or renew some lien or mortgage already subsisting on the realty which it is proposed to mortgage.

The petition in this case does not show the existence of any lien or mortgage on the interest of either of these minors. It shows that there had at one time existed a lien on the entire property for two thousand five hundred dollars, but, of course, a very small proportion of this ever attached to the five twentieths owned by these minors, subject to the life estate of their mother, and whatever it may have amounted to in the beginning, it had been fully discharged. The voluntary assumption and payment of this debt by their mother put an end to their obligation.

The petition did contain an estimate of future charges of administration, but it clearly showed that there was no purpose to apply the money borrowed to the payment of such charges, except as to the surplus that might remain after satisfying the claims of Howard and Rider, amounting to over eight thousand two hundred dollars. This sum was, at all events, to be laid out, in the first place, for the discharge of obligations in which the minors were in no manner concerned. It is true that an indebtedness of five thousand dollars from the minors to their mother for expenses incurred by her for their support and education prior to her qualification as legal guardian is alleged in the petition, but, waiving the various objections to this item insisted upon by respondents, it is, after all, more than three thousand dollars less than the amount to be paid to Rider and Howard. It appears, therefore, conclusively from the petition, and is apparent on the face of the record,

The law cannot be construed to authorize the mortgage of a minor’s estate to pay any debt but his own. It must be such a mortgage as he can discharge by paying what he is individually bound for, and such as will admit of a redemption by the payment of that which is due from him on his own account.

In this case the power of the court was exceeded, not only in attempting to mortgage the interest of the five minors to secure a sum in excess of their aggregate indebtedness, but also in the attempt to mortgage their separate interests for their aggregate debt. However advantageous it may have seemed in this instance to pursue that course; the proceeding cannot be sustained without establishing a dangerous precedent, from which serious abuses would be certain to flow.

One proposition maintained by appellant remains to be noticed: He contends that no petition whatever was necessary in order to invest the court with jurisdiction to authorize the

It is a little difficult, certainly, to give a reasonable construction to this language, but we think it would be most unreasonable to hold that it was intended to dispense with the verified petition which the first clause of the same section says shall be filed. The two provisions must be harmonized, if possible, so that both may have effect; and this may be done by supposing that the clause quoted was inserted out of abundant caution, for the purpose of designating the particular superior court to which the petition to mortgage must be addressed, irrespective of situs of the land to be mortgaged. We are satisfied, at all events, that a verified petition in substantial conformity to the statute must be filed in order to give the court jurisdiction to proceed. The omission to file it would be more than an irregularity.

It has been suggested, in support of the view that the court has power to authorize a mortgage without a petition or any of the proceedings prescribed by the statute, that no harm can result to the minor, however unnecessarily or excessively his estate is encumbered, because, it is said, the guardian will be chargeable with the whole sum borrowed, and for any misappropriation will be liable on his bond.

We think this would be a very inadequate protection to the minor, even if there were a bond with sureties sufficient to answer his demand. But no bond is required as a condition to the making of the mortgage, and the bond given by a guardian in qualifying as such does not necessarily or usually cover the value of the ward’s real property. It would be an accident if in any case there was a sufficient bond to indemnify the ward for a misappropriation of money borrowed upon the security of his real property. In this case there is no evidence of the existence of such a bond.

The judgment of the superior court is affirmed.

Temple, J., and Van Dyke, J., concurred.

McFarland, J., dissented.

I concur in the judgment, hut I have reached the same conclusion for reasons somewhat different. They are the following:—

Upon this collateral attack all intendments are to be indulged in favor of jurisdiction and the validity of the court’s order. That order authorizes the execution of a mortgage upon the real property of the minors, under an express finding that the allegations of the verified petition are true, and that it would be to the advantage of the estates of the minors, and each of them, to mortgage their property in the manner prescribed. Referring to the petition, then, to support this order, there will be found a great mass of recitals and averments touching the necessity and desirability of a mortgage, which are entirely without the purview of the statute. For example, it is shown that there stood a mortgage of four thousand five hundred dollars against the undivided one-half interest of the mother. By the new mortgage affecting the property of the minors, it is proposed to pay off this mortgage, or in other words, a lien is to be imposed upon the property of the minors to pay the debt of the mother. But, indulging all reasonable intendments in favor of the validity of the order, if there still remains in the petition sufficient averments to uphold the order actually made, — in other words, if with these insufficient and illegal reasons for mortgaging the minors’ property there should be shown other legal and sufficient reasons,—-it will be concluded that the order of the court directing the mortgage was to raise funds to be devoted to these legal purposes. In this regard the petition further shows two items,—one of $5,000 for costs and expenses already incurred in caring for, maintaining, supporting, and educating the minors; the other, an item of $4,570 for prospective charges of administration and for future cost of maintenance.

To the legality of these items many objections of weight and consequence are raised. As to the five-thousand-dollar item, it is said that it was for the moneys expended for the care and maintenance of the minors by their mother before she obtained letters of guardianship upon their estate. They were expenditures, then, made by their natural guardian, upon whom, in law, the duty, of their support was cast, and therefore they form no proper charge against the estate of the minors. Passing this objection, it is next insisted—-and this objection is certainly well taken—that it is the duty of the guardian to keep

Against the second item of $4,570, for prospective charges of administration, it may be said, assuming the legality of each item composing the charge, that it stands in a somewhat different position from the item of $5,000, because it may be assumed that the charges of administration will be equally borne by each of the wards.

But if all these difficulties were removed, and if it could be said that the court was justified, under the petition and the showing made upon it, in authorizing a mortgage for nine thousand five hundred dollars, there still remains what is to my mind an insuperable objection to the particular mortgage here in question. It will not be doubted, as has been said in the opinion of the chief justice, that no court is authorized to impose a mortgage upon the property of a minor, or to expend the moneys of a minor, for any other purpose than to benefit the minor’s property or to discharge the minor’s obligation. The property of one minor may not be encumbered with a lien in aid of his fellow-ward, nor in aid of anybody else. At all times and under all circumstances that property is to he wisely and economically administered for the benefit of the minor alone. The proceedings of a court and of a guardian with a ward’s property are not, and can never be, adversary in their nature. There are well-defined constitutional limitations to the power of the court in dealing with the property of the ward. It may change its form by sale; it may impose a lien upon it, as by mortgage; it may authorize the expenditure of parts of it when necessary: but when it acts, it acts only for the benefit of the ward, and not for the benefit of any third person. In this case the mortgage authorized by the court was a blanket mortgage for the full amount of nine thousand five hundred dollars. In other words, there was, by the mortgage, a lien imposed upon the real property of each minor for the full amount of nine thousand five hundred dollars, notwithstanding the fact

Under the conviction that for the reasons above set forth the mortgage which the court directed to be made, and which in fact was made, is void, as not authorized by the statute, I hold the ruling of the court in refusing it admission in evidence was justified.

I dissent both from the views and the conclusion declared by the majority of the court in the above-entitled cause, and adhere to the views and conclusion heretofore declared in the opinion found in 62 Pac. Rep. 459 .

I cannot agree to the construction given by the court to that portion of section 1578 of the Code of Civil Procedure which provides: “Jurisdiction of the court to administer the estate of such decedent, minor, or incompetent person shall be effectual to vest such court and judge with jurisdiction to make the order for the note or notes and mortgage, and such jurisdiction shall conclusively inure to the benefit of the mortgagee named in the mortgage, his heirs and assigns.” To my mind, it is plainly evident that the legislature intended by this provision of the statute to place the order of the court allowing the borrowing of money and giving of a mortgage, beyond collateral attack upon the ground of lack of jurisdiction in the court to make it. I see nothing in the provision which in any

Neither can I agree with that portion of the opinion which holds that the order of the court giving the guardian authority to make the mortgage is void, after the concession made therein that five thousand dollars of the amount for which the mortgage was given was a debt against the minors, and a debt for which the court could have made an order for the mortgaging of their estate. If the court in this proceeding had jurisdiction to make an order for a mortgage of five thousand dollars, I know of no principle of law which would declare an order for a mortgage of nine thousand five hundred dollars void in its entirety. I believe in such a case, according to every principle of law, the mortgage should be held valid to the extent of five thousand dollars, at least. The law is settled in this state, that where a defendant has been convicted, and sentenced to state prison for a period, for example, of ten years, when the greatest penalty which could be inflicted under the statute for the offense of which he has been convicted was five years, that a judgment of that character is not void in its entirety, but simply void for the excess; and this court has repeatedly held that a defendant under those circumstances is not entitled to his discharge until the expiration of the term of imprisonment fixed by the statute. If this be the rule in criminal cases as to the jurisdiction of courts to render judgments, I see no reason why the same principle should not apply to judgments in civil cases.

Aside from the foregoing conclusions, I am firmly convinced that this order granting the right to mortgage the minors’ property for nine thousand five hundred dollars is.valid in its entirety. In the petition for the order it is set forth that “ the costs and expenses of caring for, maintaining, supporting, and educating the said children from the first day of November, 1885, to the first day of April, 1898, is five thousand dollars.” Again, under the head of charges of administration we find items amounting to $4,570. These items include a family allowance for said minors, attorney’s fees, guardian’s commis

It may be further suggested that no harm can possibly come to minors by reason of the construction here given to orders of the character of the one involved in this proceeding. Upon the other hand, the construction given this order by the majority of the court does the gravest injustice to the mortgagee in this case. It will often be a close question whether or not a certain particular item of charge will come within the designation of debts or expenses of administration; and it would be a gross injustice if a mortgagee is required to decide this question at his peril. Indeed, it would seem, if this be so, that few mortgages would ever be given under the section of the code here involved. As before suggested, there is no hardship upon a minor in a case of this character. He secures the. money; the guardian is responsible to him for it; it can only be expended upon the order of the court for his benefit. If the guardian appropriates it to any other purpose,

For the foregoing reasons the judgment and order should be reversed and the cause remanded.